Penal Law § 220.03

The defendant was charged with one count of criminally using drug paraphernalia in the second degree and one count of criminal drug possession of a controlled substance in the seventh degree. The defendant has moved for dismissal for facial insufficiency, for disclosure of the search warrant and related documents, and for invalidation of the search warrant and suppression of the physical evidence seized pursuant thereto.

A New York Drug crime attorney said that in April 2008, inside of 97th Street in New York County, 18 ziplock bags containing crack cocaine residue were recovered from a bedroom in “the defendant’s apartment” and a crack pipe and a strainer containing crack cocaine residue were recovered from another bedroom in “the defendant’s apartment.”

Additionally, three large ziplock bags containing numerous small pink ziplock bags, four large ziplock bags containing numerous small clear ziplock bags, a scale, a glass Pyrex measuring cup, and a white cup, all allegedly intended for use in the packaging and dispensing of narcotic drugs, were also recovered from “the defendant’s apartment.” Further, a ziplock bag of crack cocaine was recovered from “the defendant’s apartment.” Finally, a clear ziplock bag containing crack cocaine and a ziplock containing marijuana was recovered from the defendant’s “right shorts pants pocket.”

Defendant claims that the complaint fails to establish his possession of the alleged crack cocaine and drug paraphernalia seized from the apartment by nonhearsay factual allegations. Specifically, he contends that the deponent police officer’s assertion that the apartment where these items were found was “the defendant’s apartment” is an uncorroborated hearsay allegation. Accordingly, he seeks dismissal of the complaint for facial insufficiency.

The Court held that in order to be facially sufficient, an information must substantially conform to the requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant’s commission thereof.

The requirement of nonhearsay allegations has been described as a “much more demanding standard” than a showing of reasonable cause alone; however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt. Thus, “[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged”.

Where the factual allegations contained in an information “give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading”. Ultimately, “the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged”.

Under Penal Law § 220.03, “[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance.” Under Penal Law § 10.00 (8), to “possess” means to have physical possession of, or dominion and control over tangible property. In this case the defendant is alleged to have constructively possessed the alleged crack cocaine and drug paraphernalia recovered from the apartment, and to have physically possessed the alleged crack cocaine recovered from his pants pocket.

In order to support a charge that the defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion and control over the property by demonstrating that he had a sufficient level of control over the area in which the contraband was found or over the person from whom it was seized. Constructive possession is established where the defendant has been found in proximity to contraband recovered from premises under the defendant’s control.

A defendant has been found to have control over premises which he provides as a home address to city agencies. Here, the defendant is accused of knowingly and unlawfully possessing a quantity of crack cocaine and purported drug paraphernalia which were allegedly recovered from “the defendant’s apartment.” Possession suffices to permit the inference that the possessor knows what he possesses, especially if it is in his hands, on his person, in his vehicle or on his premises. Apart from the deponent officer’s assertion that the apartment was “the defendant’s,” however, there are no evidentiary facts alleged to support the inference that the defendant owned or occupied the apartment. For example, there is no allegation that the officer observed the defendant’s name on a lease to the apartment, or that he observed mail addressed to the defendant at the apartment, or even that the defendant admitted to the officer that he lived in the apartment. Hence, the officer’s statement that the apartment was “the defendant’s” is completely conclusory. Without evidentiary facts to demonstrate that the defendant exercised dominion and control over the premises, the sole allegation that the items were recovered from “the defendant’s apartment” is insufficient to provide reasonable cause to believe that the defendant knowingly possessed the alleged crack cocaine and drug paraphernalia recovered from the apartment in this case. Indeed, although constructive possession may not be inferred from the defendant’s mere presence in premises where contraband is found, the defendant is not even alleged to have been present in the apartment at the time the items were seized.

Accordingly, without evidentiary facts demonstrating the defendant’s dominion and control over the premises or corroboration of his ownership of the apartment, and without corroboration that the bag recovered from the defendant contained cocaine, the complaint is facially insufficient and consequently is dismissed. The defendant’s remaining points are moot.

Possession of illegal substance like drugs is punishable under the law.

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